ABSTRACT
Chapter 4 explores how the evolutive consensus-based framework developed in this book can inform proportionality testing under Article 5. The normative justifications for a turn to both international and European consensus, namely non-regression and the need to protect the rights of vulnerable detainees, can be used to enact a consensus-focused progressive interpretation. Gaps in protection arise where rights held by vulnerable detainees are not advanced in line with evolving societies. Both children and persons under the control of police authorities are particularly vulnerable to breaches of the right to liberty. Leaving the Article 5 rights of these groups stagnant results in imbalanced proportionality review that is skewed against the right to liberty. Neglect of an evolutive approach to Article 5 as compared with other Convention provisions affects where the balance between competing private interests is found to lie, with more developed parental rights under Article 8 (the right to private and family life) taking precedence over a child’s right to liberty. A failure to have regard to modern-day policing techniques in balancing the right against the public interest, meanwhile, leads to a weakening of rights not only for protesters, but indeed for all those who find themselves under police control.
